Mental Health Act Policy Board library reference Document author Assured by Review cycle P041 Associate Director of Governance, Quality and Regulatory Compliance Quality and Standards Committee 1 Year This document is version controlled. The master copy is on Ourspace. Once printed, this document could become out of date. Check Ourspace for the latest version. Contents Introduction... 3 1. Purpose or aim... 3 2. Scope... 3 3. Definitions... 3 4. Policy description... 4 4.1 The Relationship between the MCA and the Mental Health Act... 4 4.2 The Principles of the MHA Code of Practice... 4 5. Roles and responsibilities... 5 5.1 Executive Director of Nursing and Quality... 5 5.2 Associate Director of Governance, Quality and Regulatory Compliance... 5 5.3 Head of Social Care... 5 5.4 Delivery Units... 6 5.5 Registered Practitioners... 6 5.6... 6 5.7 All other Staff... 7 6. Training... 7 7. Monitoring or audit... 7 8. References... 8 Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 1 of 12
9. Associated and Related Procedural Documents:... 8 10. Appendix 1: Hospital Managers Scheme of Delegation... 9 Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 2 of 12
Introduction Avon and Wiltshire Mental Health Partnership NHS Trust (AWP) will ensure that service users experience high quality care, treatment and support that meets their needs and protects their rights. (Care and welfare of people who use services CQC Regulation 9; Outcome 4) The 1983 Mental Health Act was amended by the 2007 Mental Health Act. The purpose of the policy is to support staff in the effective implementation of the Mental Health Act and Code of Practice, to ensure service users rights are upheld and that staff act in the service user s best interests at all times. 1. Purpose or aim The purpose of the policy is to support staff in the effective implementation of the Mental Health Act, to ensure service users detained under the Act receive care and treatment lawfully and that they are able to exercise their rights at all times. The policy sets out the arrangements for Mental Health Act, sets out general principles and processes for Mental Health Act reporting and performance arrangements, defines the training requirements for the Mental Health Act, and sets out the Trust Hospital Managers Scheme of Delegation (in Appendix 1). The Trust is required to deliver services to the people it serves within the legal framework of the Mental Health Act and in accordance to the Mental Health Act Code of Practice (2015) and guidance. The Policy will uphold the Guiding Principles as described in Chapter 1 of the Code of Practice (2015). There is an expectation that Registered Practitioners will maintain and be able transfer competency across services, in this core area of their practice. In addition Practitioners will be able to apply the Guiding Principles of the Act whilst they execute their duties. The Trust will provide services that meet the Quality and Safety Outcomes required by the Care Quality Commission and in particular the Outcomes (2, 4, 7, 18, and 19) The Policy will meet the requirements of the Human Rights Act (1998) and the Equalities Act (2010). 2. Scope Adherence to the Act and the Mental Health Act Code of Practice will be supported in AWP through adherence to clear and robust supervision arrangements as outlined in the Trust supervision policy. This Policy applies to all AWP staff working with individuals with mental health problems. Full details of practice guidance and Procedures are accessible via hyperlinks within this document to the Mental Health Act pages of Ourspace.. This policy applies to all staff (including bank and agency staff) and volunteers working with adults in the Trust. 3. Definitions The term patient is used throughout to reflect the language of the Code but terms such as community patient or service user may be preferred locally. When the Code refers to children it means people under the age of 18. Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 3 of 12
4. Policy description 4.1 The Relationship between the MCA and the Mental Health Act The Relationship between the MCA and the Mental Health Act In deciding on the detention of a patient who lacks capacity, and whether the Mental Health Act or Deprivation of Liberty Safeguards should be applied, consideration should be made as to what is the least restrictive method of detention in the particular case, having taken into account all the relevant factors. Further guidance on this issue is contained in the Mental Health Act Code of Practice [2015], Chapter 13 Mental capacity and deprivation of liberty. For patients who are detained under the Mental Health Act (part IV), the consent to treatment provisions contained in Part IV will trump the provisions of the Mental Capacity Act in the areas covered in Part IV. For all other patients who lack capacity, any decisions taken with regard to care or treatment are governed by the Mental Capacity Act. This includes detained patients where the care and treatment under consideration is not covered by the Mental Health Act. 4.2 The Principles of the MHA Code of Practice The Code provides statutory principles that professionals and others must use to inform their decision making. There are five Guiding Principles every decision about a patient under the Act should be guided by and tested against these principles. All decisions must be lawful and informed by good professional practice. Lawfulness necessarily includes compliance with the Mental Capacity Act 2005, the Human Rights Act 1998 and the equality Act 2010. The principles inform decisions, they do not determine them. The weight given to each principle in reaching a particular decision will depend on the context. The principles as a whole need to be balanced in different ways according to the particular circumstances of each individual decision. The Mental Health Act states: In performing functions under this Act persons mentioned in subsection (1) (a) or (b) shall have regard to the Code [Code of Practice 2015]. Section 118. This means that when reaching decisions, professionals must follow the advice of the Code or justify why they are not able to do so. If a circumstance arises when the care team believe there is justification for practicing outside of the Code of Practice, either the Associate Director of Governance, Quality and Regulatory Compliance, Associate Medical Director or Head of Social Care must be consulted and a decision will be made at that point to seek advice from AWP s Mental Health Act solicitors. Purpose principle Decisions under the Act must be taken with a view to minimising the undesirable effects of mental disorder, by maximising the safety and wellbeing (mental and physical) of patients, promoting their recovery and protecting other people from harm. Least restriction principle People taking action without a patient's consent must attempt to keep to a minimum the restrictions they impose on the patient's liberty, having regard to the purpose for which the restrictions are imposed. Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 4 of 12
Respect principle People taking decisions under the Act must recognise and respect the diverse needs, values and circumstances of each patient, including their race, religion, culture, gender, age, sexual orientation and any disability. They must consider the patient's views, wishes and feelings (whether expressed at the time or in advance), so far as they are reasonably ascertainable, and follow those wishes wherever practicable and consistent with the purpose of the decision. There must be no unlawful discrimination. Participation principle Patients must be given the opportunity to be involved, as far as is practicable in the circumstances, in planning, developing and reviewing their own treatment and care to help ensure that it is delivered in a way that is as appropriate and effective for them as possible. The involvement of carers, family members and other people who have an interest in the patient's welfare should be encouraged (unless there are particular reasons to the contrary) and their views taken seriously. Effectiveness, efficiency and equity principle People taking decisions under the Act must seek to use the resources available to them and to patients in the most effective, efficient and equitable way, to meet the needs of patients and achieve the purpose for which the decision was taken. 5. Roles and responsibilities 5.1 Executive Director of Nursing and Quality The Director of Nursing and Quality is the responsible Executive Director for the Mental Health Act and reports to the Trust Board in this area of responsibility. 5.2 Associate Director of Governance, Quality and Regulatory Compliance The Associate Director of Governance, Quality and Regulatory Compliance provides Trust wide strategic leadership to ensure the Trust meets its obligations to comply with the Mental Health Act and Code of Practice. 5.3 Head of Social Care The Trust Head of Social Care, as the Trust Mental Health Act Lead has responsibility for providing leadership, support and expert advice on safeguarding adults with regard to the Mental Health Act. Their duties include: Developing of policies, systems and the annual Trust work plan for the MHA Annual reporting to the Board Review of CQC MHA inspection reports and delivery of actions Lead manager for MHA in the Trust Mental Health Legislation work stream group, and for working with local AMHP services, and working and reporting to Regulators and Commissioners on MHA practice in the Trust The Head of Social Care is expected to give robust, consistent expert advice in partnership with other specialist senior colleagues, reinforcing the need to deliver high quality safe services in line with legislation and best practise, and ensuring learning from QIP s. Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 5 of 12
5.4 Delivery Units All delivery unit management teams are responsible for: MHA practice and compliance with the related policy, procedures and standards in their area of responsibility Ensuring that all staff know how to access Trust-wide policy from the Board Library and that material changes to Trust-wide policy and new policies are brought to the attention of all affected staff Clinical Leads will ensure that the standards of the MHA and this Policy are incorporated into an annual programme of Audit. 5.5 Registered Practitioners Registered Practitioners are required by their relevant codes of professional practice to ensure that the care and treatment provided to service users is lawful and recorded. Registered Practitioners include those staff accountable to a Professional Regulator. Regulators include the General Medical Council, Nursing and Midwifery Council and the Health and Care Professions Council. The list is indicative and does not mean to exclude other Regulators not listed. 5.6 Provide effective access to appropriate advice and support in relation to administration processes for all mental health legislation that is easily available to all clinicians and practitioners in the Trust throughout office hours Collate and prepare data in relation to all mental health legislation The team will provide regular and effective performance data for all DUs and the Mental Health Legislation Group as required, using and developing appropriate data bases to capture and use information effectively. The team must support the effective functioning of review and tribunal processes through effective booking and clerking processes Ensure effective reporting to the Care Quality Commission in those reporting areas identified in Regulations 14, 16, 17 and 18. The service will provide prompts to clinicians and practitioners with regard to time periods, e.g. section renewals, consent to treatment to enable adherence to legislation The is responsible for: Providing appropriate advice and support in relation to administration processes for all mental health legislation, that is easily available to all clinicians and practitioners in the Trust throughout office hours Supporting the effective functioning of management review and tribunal processes through effective booking and clerking (where contracted for Tribunals) processes Ensuring effective reporting to the Care Quality Commission in those reporting areas identified in Regulations 14, 16, 17 and 18. Providing regular and effective performance data for all Delivery Unit s and the Trust Mental Health Legislation work stream group as required, using and developing appropriate data bases to capture and use information (RiO and bespoke databases) Providing prompts to clinicians and practitioners with regard to time periods, e.g. section renewals, consent to treatment to enable adherence to legislation Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 6 of 12
Supporting the review of CQC MHA inspection reports and delivery of actions Undertaking ward based audits of MHA compliance, and providing feedback on the outcomes of audits and practice updates to wards and teams 5.7 All other Staff Individual staff members have a personal duty to work within the provisions of the Ac,t approved Trust-wide policies and their associated procedures and protocols. Failure to observe and implement policy and their related procedures and protocols is addressed through performance management mechanisms, training, or where appropriate, the Trusts Disciplinary Procedures. 6. Training All Registered Practitioners have an individual professional responsibility to keep up to date with the Act and Code of Practice. The Learning and Development department will ensure all relevant staff required to undertake MHA training are identified on the Training Matrix and will also provide regular reports to the Mental Health Legislation work stream group and each Delivery Unit as to the take up of this training. Each Delivery Unit will be responsible for ensuring that any identified gaps in completion of the training are addressed. 7. Monitoring or audit Compliance with the policy will be monitored through a variety of different mechanisms, as follows. An annual and quarterly update assurance reports on the Mental Health Act will be provided to the Trust Mental Health Legislation work stream group, and reported to the Trust Quality and Standards Committee. Exception reports will be made through the Head of Social Care as required between scheduled reports to the Trust Mental Health Legislation work stream group. The Trust Board will make an annual declaration in respect of Mental Health Act compliance as part of its declaration on compliance with Care Quality Commission s Fundamental standards including Regulation 10 and 13 and other relevant statutory standards in relation to the Mental Health Act. The Trust benchmarks its performance with other health trusts through CQC Annual reports on the Mental Health Act and other available sources. This is included within the annual assurance to the Quality and Standards Committee and board. Periodically Commissioners and CQC MHA and other inspections audit the Trust s arrangements for the Mental Health Act. The Trust Head of Social will review patient and staff experience data on a rolling quarterly basis to assess feedback on the success of the implementation in practice of this policy. The Learning and Development department will maintain records of Mental Health Act training and follow up non-attendees. The training programme is routinely evaluated by participants. This information is internally externally though lead commissioners, and reported annually to the Quality and Standards Committee and Board. The Trust undertakes regular audits of its arrangements for the Mental Health Act and Deprivation of Liberty Safeguards. It does this on a case basis and through a program of internal audits. Each ward and team who are providing care and treatment to service users detained under the act including those on extended s17 leave and supervised community treatment must have an effective system in place to monitor adherence to the Act. Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 7 of 12
Good management supervision and case load management are key to the safe and effective implementation of the MHA. Line managers will monitor adherence to the Act, ensuring the provision of lawful interventions. At practice level, it is recognised that dealing with Mental Health Act issues may be emotionally upsetting for staff and volunteers involved. Managers must therefore ensure that when considering Mental Health Act issues are a core part of each individual s supervision arrangements, as well as ensuring best practice in the application of the Mental Health Act in that they ensure support is provided when necessary to the staff or volunteers involved. 8. References Human Rights Act 1998 placed a positive duty on public bodies to act in compliance with the 1950 European Convention on Human Rights Equality Act 2010 Health and Social Care Act The Mental Health Act MHA Code of Practice 2015 MCA and DoLS Policy MCA Code of Practice Multi Agency Protocol - Working together when mental health act assessments are requested, including situations where resources are unavailable De-escalation room standard operational procedure 9. Associated and Related Procedural Documents: All related Procedures of the Mental Health Act are located on the Mental Health Act pages of Ourspace. Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 8 of 12
10. Appendix 1: Hospital Managers Scheme of Delegation Delegated Power Receipt and Scrutiny of Documents Formal receipt and scrutiny of documents to enable admission Formal receipt and scrutiny of documents to enable Supervised Community Treatment (SCT) Detailed scrutiny of formal documents to ensure legality and identify correctible errors Scrutiny of medical grounds for admission/compulsion Rectification of correctable errors Request for social circumstances report from Local Social Services Authority, where an admission is based on an application made by the nearest relative The maintenance of records and provision of reports Provision of Information Hospital Managers are required to ensure that detained patients, SCT patients and, where relevant, their nearest relative, receive important information about: the way that the Act works their rights including the right to an Independent Mental Health Advocate (IMHA) decisions taken regarding their detention/compulsion changes to their care arrangements Information to patients delegated Information to nearest relative Transfer of Patients transfer patients (including powers to convey) between hospitals, for detained and recalled SCT patients, and from hospital to guardianship Delegated To Mental Health Act Administration, Nurse in charge of ward or Senior Nurse Mental Health Act Administration or Senior Nurse. Consultant Psychiatrist Responsible Clinicians, Named Nurse, Ward Manager, Care Coordinator, Team Manager, Named Nurse, Ward Manager or Care Coordinator, Team Manager, Intensive Team Manager, Ward Manager, Matrons and On Call Managers Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 9 of 12
Patients Correspondence Withholding the outgoing mail of a detained patient where the addressee has requested such in writing Mental Health Review Tribunals A duty is placed on Hospital Managers to refer specified cases of detained and SCT patients to the Tribunal (Section 68 of the MHA), or in certain circumstances to request the Secretary of State to do so. They are also required to provide the Tribunal with information and reports and to facilitate access to legal representation Patients wishing to appeal to Tribunals should be assisted to do so Representation for Responsible Authority at Tribunals Hospital Managers, as the Responsible Authority, are entitled to representation at Mental Health Review Tribunals Domestic Violence, Crime and Victims Act 2004 Hospital Managers have duties under this legislation in regard to victims of offences committed by certain patients Authority to Detain Hospital Managers can authorise people to keep custody of patients while on section 17 leave of absence and under section 18 authorise people to take and return patients absent without leave Internal Mail System/FAX Decision regarding the use of Trust internal mail system and FAX as a means of being served documents Patients Detained for Reports Hospital Managers should enable patients remanded on sections 35 and 36 to access suitable legal representation Ward Managers Ward Managers Manager with lead responsibility for Mental Health Act matters Ward Managers, Team Managers Senior managers Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 10 of 12
Age-Appropriate Services Hospital Managers should ensure that environments to which children and young people are admitted are suitable for their age (subject to their needs)* and must consider whether a patient, admitted to an adult ward in an emergency, should be transferred to more appropriate accommodation In order to implement these delegated duties Hospital Managers require officers to produce policies/procedures/guidance as appropriate and to review them in line with Trust policy Clinical Leads and Service Managers, Matrons, Ward Managers Director of Nursing and Quality Note : When the Ward or Team Manager is not on duty, powers are further delegated to the Nurse in Charge of the ward or the Registered Practitioner in Charge of relevant community teams and other staff on duty. Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 11 of 12
Version History Version Date Revision description Editor Status 1.0 09 Oct 2008 Approved by Trust Integrated Governance Committee 1.1 Dec 2008 Minor amendments Approved by Mental Health Act Committee Approved Approved 2. 0 08 July 2010 Approved by MHLC AM Approved 3.0 07 Sept 2010 Approved by Quality & Healthcare Governance Committee AM Approved 3.1 10 June 2014 Re-draft due to admin changes MD Draft 4.0 17 June 2014 Minor amendments Approved by Quality and Standards Committee MD Approved 4.1 08 February 2016 Re-draft to reference changes required by the revised Mental Health Act Code of Practice [2015] MD Draft 5.0 16 February 2016 5.1 24 January 2017 6.0 27 January 2017 6.1 11 January 2018 7.0 09 March 2018 Minor amendments from committee comments MD Approved Redraft due to administrative changes MD Draft Approved by the Director of Nursing and Quality AD Approved Redraft due to administrative changes MD Draft Approved by the Medical Director RE Approved 7.1 11 Sept 2018 Link made to approved De-escalation room standard operational procedure AM Approved Mental Health Act Policy Expiry date: 09/03/2019 Version No: 7.1 Page 12 of 12